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NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

RESEARCH PAPER: ADMINISTRATIVE LAW

TOPIC- RULE OF FAIR HEARING

SUBMITTED TO: SUBMITTED BY:

MR. JAGDISH JENA ANSHUL GUPTA

(Assistant Professor) SEMESTER: V

SECTION: 'B'

ROLL NO.: 795

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TABLE OF CONTENTS

 Introduction
 Natural Justice: The Rule of Fair Hearing
 Audi Alteram Partem
 Components of The Rule of Fair Hearing
 Application of the Rule in Administrative Law
 Conclusion
 Bibliography
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INTRODUCTION

In order to protect himself against the excesses of organized power man has always appealed
to someone beyond his own creation. Such someone could only be God and His Laws, divine
law or natural law, to which all temporal laws and action must conform. This is the origin of
the concept of Natural Justice. “Natural justice” operates on the principles that man is
basically good and therefore a person of good intent should not be harmed, and one should
treat others as one would like to be treated.

In India, there is no particular statute, laying down the minimum standard, which the
administrative bodies must follow while exercising their decision making powers. There is,
therefore, a bewildering variety of administrative procedure. In some cases, the
administrative procedure is controlled by the statute under which they exercise their powers.
But in some cases, the administrative agencies are left free to device their own procedure. But
the courts have several times reiterated that the administrative agencies must follow a
minimum of fair procedure, while exercising their powers. This fair procedure is called the
principles of natural justice. Natural justice or procedural fairness is a legal philosophy used
in some jurisdictions in the determination of just, or fair, processes in legal proceedings.

Natural Justice is a concept of common-law and it is the common-law world counterpart of

the American ‘procedural due process’. It represents higher procedural principles developed
by judges which every administrative agency must follow in taking any decision adversely
affecting the rights of a private individual.

For some three or four hundred years Anglo-American courts have actively applied two
principles of natural justice. These two principles are:
1. Nemo judex in causa sua - No one should be made a judge in his own cause or the rule
against bias.
2. Audi alteram partem - Hear the other party or the rule of fair hearing or the rule that no
one should be condemned unheard.

From the above two rules a corollary has been deduced namely that he who shall decide
anything without the other side having been heard, although he may have said what is right,
will not have done what is right, in other words has it is now expressed, Justice should not
only be done but should manifestly be seem to be done
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NATURAL JUSTICE: The Rule of fair hearing

“The phrase is, of course, used only in a popular sense and must not be taken to mean that
there is any justice natural among men. Among most savages there is no such thing as Justice
in the modern sense. In ancient days a person wronged executed his own justice. Amongst
our own ancestors, down to the thirteenth century, manifest felony, such as that of a
manslayer taken with his weapon, or a thief with the stolen goods, might be punished by
summary execution without any form of trial. Again, every student has heard of
compurgation and of ordeal; and it is hardly necessary to observe that (for example) a system
of ordeal by water in which sinking was the sign of innocence and floating the sign of guilt, a
system which lasted in this country for hundreds of years, has little to do with modern ideas
of justice. It is unnecessary to give further illustrations. The truth is that justice is a very
elaborate conception, the growth of many centuries of civilization; and even now the
conception differs widely in countries usually described as civilized”1.

AUDI ALTERAM PARTEM

'Audi Alteram Partem' is the Latin expression well ingrained in the common law legal
system. The omnipotency inherent in the doctrine is that no one should be condemned
unheard. Its application depends on the factual matrix to improve administrative efficiency,
expediency and to mete out justice. In the field of administrative action, this principle has
been applied to ensure fair play and justice to affected persons. This principle is a sine qua
non of every civilized society. Administrative agencies in India are not bound by the
technical rules of procedure of law courts; this accentuates the need to follow the minimum
procedure of fair hearing. Courts, from case to case, have in their decisions developed a fine

1
Maclean v. The Workers Union [1929] 1 Ch. 602
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code of administrative procedure, which applies to every administrative decision-making but

in a pragmatically flexible manner.

The opportunity to be heard also means that parties may be given the opportunity to be heard
on the decision maker’s preliminary views about their case. Until the issue is finally decided,
any view which is expressed should be merely a preliminary view, with a clear invitation to
the parties to respond critically to it, and the decision-maker must be genuinely willing to
consider on their merits any responses which might be made. Such a decision maker would
be seen as conscientiously grappling with those issues, in a way designed to extract
maximum assistance from the parties.

The components of fair hearing are not fixed but are variable and flexible. Their scope and
applicability differ from case to case and situation to situation. In Mineral Development v.
State of Bihar6, the apex court observed that the concept of fair hearing is elastic and not
susceptible of a precise and easy definition. The hearing procedures vary from the tribunal,
authority to authority and situation to situation. It is not necessary that the procedures of
hearing must be like that of the proceedings followed by the regular courts.

The objective of the giving the accused an opportunity of fair hearing is that an illegal action
or decision may not take place. Any wrong order may adversely affect a person. The maxim
implies that the person must be given an opportunity to defend himself. LORD HEWART
rightly observed that “it is merely of some importance, but is of fundamental importance that
justice should not only be done, but should manifestly and undoubtedly be seemed to be
done”. In this regard the Dr. Bentley case7 needs to be elaborately discussed. In this case the
Court of King’s Bench condemned the decision of the Cambridge University, of cancelling
the degree of the scholar, without giving him the opportunity to be reasonably heard.

In another landmark case of Olga Tellis v. Bombay Municipal Corpn8., the court held that
even if the legislature authorises the administrative action, without any hearing, the law
would be violative of the principles of fair hearing and thus violative of Articles 14 and 21 of
the Indian Constitution. In Cooper v. Wandsworth Board of Works9, BYLES J. observed that

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the laws of God and man both give the party an opportunity to defend himself. Even God did
not pass a sentence upon Adam before he was called upon to make his defence.

Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow completely
the principles of natural law exists. But the cases which are classified as the ‘administrative’,
the duty on the administrative authority is to act justly and fairly and not arbitrarily. In the
1970 case of A. K. Karaipak v. Union of India10, the Supreme Court made a statement that
the fine distinction between the quasi-judicial and administrative function needs to be
discarded for giving a hearing to the affected party. Before the Karaipak’s case, the court
applied the natural justice to the quasi-judicial functions only. But after the case, the natural
justice could be applied to the administrative functions as well.

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COMPONENTS: RULE OF FAIR HEARING

1. Right to notice The term ‘Notice’ originated from the Latin word ‘Notitia’ which
means ‘being known’. Thus it connotes the sense of information, intelligence or
knowledge. Notice embodies the rule of fairness and must precede an adverse order. It
should be clear enough to give the party enough information of the case he has to
meet. There should be adequate time for the party, so that he can prepare for his
defense. It is the sine qua non of the right of hearing. If the notice is a statutory
requirement, then it must be given in a manner provided by law. Thus notice is the
starting point in the hearing. Unless a person knows about the subjects and issues
involved in the case, he cannot be in the position to defend himself. The notice must
be adequate also. Its adequacy depends upon the case. But generally, a notice, in order
to be adequate must contain following elements: Time, place and nature of hearing;
Legal authority under which hearing is to be held; Statements of specific charges
which the person has to meet.
The test of the adequacy of the notice will be whether it gives the sufficient
information and material so as to enable the person concerned to prepare for his
defence. There should also be sufficient time to comply with the requirements of a
notice. Where a notice contains only one charge, the person cannot be punished for
the charges which were not mentioned in the notice.
The requirement of notice can be dispensed with, where the party concerned clearly
knows the case against it and thus avails the opportunity of his defence. Thus in the
case of Keshav mills Co. Ltd. v. Union of India11, the court upheld the government
order of taking over the mill for a period of 5 years. It quashed the argument of the
appellants that they were not issued notice before this action was taken, as there was
the opportunity of full-scale hearing and the appellant did not want to know anything
more.
2. Right to know the evidence against him Every person before an administrative
authority, exercising adjudicatory powers has right to know the evidence to be used
against him. The court in case of Dhakeshwari Cotton Mills Ltd. v. CIT12, held that
the assessee was not given a fair hearing as the Appellate Income Tax tribunal did not

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disclose the information supplied to it by the department. A person may be allowed to

inspect the file and take notes.
3. Right to present case and evidence The adjudicatory authority must provide the
party a reasonable opportunity to present his case. This can be done either orally or in
written. The requirement of natural justice is not met if the party is not given the
opportunity to represent in view of the proposed action.
Courts have unanimously held that the oral hearing is not an integral part of the fair
hearing, unless the circumstances call for the oral hearing. In Union of India v. J P
Mitter13, the court refused to quash the order of the President of India in respect of the
dispute relating to the age of a High Court judge. It was held that where the written
submission is allowed, there is no violation of natural justice, if the oral hearing is not
granted.
4. Right to cross-examination: The right to rebut adverse evidence presupposes that the
person has been informed about the evidence against him. Rebuttal can be done either
orally or in written, provided that the statute does not provide otherwise. Cross
examination is a very important weapon to bring out the truth. Section 33 of the
Indian Evidence Act, 1972, provides for the rights of the parties to cross-examination.
The cross-examination of the witnesses is not regarded as an obligatory part of natural
justice. Whether the opportunity of cross examination is to be give or not depends
upon the circumstances of the case and statute under which hearing is held. State of
Jammu and Kashmir v. Bakshii Ghulam Mohd14. , the Government of Jammu and
Kashmir appointed a Commissioner of Inquiry to inquire into the charges of
corruption and maladministration against the ex-Chief Minister of the state. He
claimed the right to cross-examine the witnesses on the ground of natural justice. The
Court interpreted the statute and held that only those witnesses who deposed orally
against the chief Minister can be cross-examined and not of those who merely filed
affidavits.
Right to counsel: For some time the thinking had been that the lawyers should be kept
away from the administrative adjudication, as it saves time and expense. But the right
to be heard would be of little avail if the counsel were not allowed to appear, as
everyone is not articulate enough to present his case. In India few statutes like the
Industrial Disputes Act, 1947, specifically bar the legal practitioners from appearing

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before the administrative bodies. Till recently the view was that the right to counsel
was not inevitable part of the natural justice. But this view has been almost done away
with.

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Maharashtra SRTC v. B.R.M Service, AIR 1969 SC 329
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APPLICATION OF THE RULE IN ADMINISTRATIVE LAW

Powers of search and seizure- The powers of search and seizure are extraordinary powers in
the hands of the state for the protection of social security which is of an extreme nature and
constitutes a serious invasion of the privacy, reputation, business and freedom of the affected
person. Although the power of search may not take into consideration the natural justice, the
power of seizure cannot afford to ignore natural justice. Similarly, the power of confiscation
cannot be exercised without the affected party being given an opportunity of being heard17.

Discretionary powers- Discretionary powers are subject to control and fair hearing before
the decision-making bodies and they may act as a control mechanism on the decision-making
powers. However, discretionary action may comprise of dominant element, such as, a major
administrative policy, economic or any threat to the community which may negate the idea of
fair hearing18.

Supercession of Statutory bodies and Municipal Corporations - The principle of natural

justice must be observed when the government suspends bodies, such as panchayats19, or
when it appoints an administrator for a registered society in public interest. The government
will also allow natural justice when it decides to supercedes a municipal corporation.

Right to Property- A person whose property rights are adversely affected by any
administrative action is entitled to natural justice. Before passing orders to demolish a house,
the concerned administrative authorities must give the occupant a show cause against such
orders. Similarly, in cases of land acquisition by the government for public purposes, the
collector, who is responsible for holding an inquiry and then submitting his report to the
government, must follow the principles of natural justice.

Withdrawal of benefits- When the government withdraws a benefit conferred by it on a

person, the person is entitled to a fair and just hearing. The government must also follow
natural justice principle when an ex gratia benefit already sanctioned in to be withdrawn
Disciplinary Action

17
Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v. Charan Das
Malhotra AIR 1972 SC 689.
18
Sadhu Singh v. Delhi Administration AIR 1966 SC 91
19
T V R V Radhakrishnan Chettiar v. State of Tamil Nadu AIR 1974 SC 1862
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 Against students- Before a student faces disciplinary action, such as expulsion from
the institution, or cancelling of his examination results, he is entitled to fair hearing on
the principles of natural justice by the authorities concerned.20 However, in cases
where a student is expelled from the educational institution on the grounds of
academics, the case is different and he is not entitled to natural justice.
 Against employees of Public Authorities- For dismissing and terminating the
service of an employee who is employed under a public authority, a hearing must be
given to the affected person. In specific cases where service conditions of employees
are governed by statutory provisions, the natural justice provisions must be read into
the statute in the case of termination of the employment. If there are no statutory
provisions to govern the service conditions of employees, still natural justice should
be observed while taking disciplinary action against them.
 Against Government servants- A civil servant of the government cannot be
dismissed or removed in rank unless an inquiry is held and in which he is informed of
the charges against him.21 He is also entitled to a reasonable opportunity to being
heard according to the natural justice provisions. It should also be mentioned that any
government action, other than dismissal, removal or reduction in rank, affecting the
government employee is also subject to natural justice principles.
 Against Pensioners- When a civil servant retires from service, he is entitled to
receive pension. The government cannot reduce or withhold the pension of the person
without giving the pensioner an opportunity to make his defence. Similarly, the
gratuity payable to a person upon retirement cannot be reduced without giving the
employee a reasonable opportunity to be heard.22

20
Jagdish Pandey v. Chancellor, University of Bihar AIR 1968 SC 353
21
Arjun Chaubey v. Union of India AIR 1984 SC 1356
22
Union of India v. G. Gangayutham AIR 1997 SC 3387
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CONCLUSION

The natural justice forms the cornerstone of every civilized legal system. It is not found in the
codified statutes. But it is inherent in the nature. Being uncodified, the natural justice does not
have a uniform definition. However, it lays down the minimum standard that an
administrative agency has to follow in its procedure. Where the legal justice fails, the role of
natural justice becomes evident in preventing the miscarriage of justice. Even God never
denied the natural justice to the human beings. So the human laws also need to be in
conformity with the rules of natural justice.

The rule of fair hearing must be followed to prevent the miscarriage of justice. If an accused
is punished unheard, the purpose of law is defeated. The adjudicatory authority does not
know whether the accused is innocent or not. What if the accused is punished unheard and
later he turns out to be an innocent? Before taking any action the adjudicatory authority has to
keep in mind the several considerations.

Administrative law has always been considered to be an informal form of justice as it has no
necessity for adherence to specific procedures or rules laid down in a statute book. This
feature has made administration more realistic and accessible forum for addressing citizen
grievances.

Some jurists and many lawyers, belonging to the conservative school, thought that natural
justice in its ever-expanding application was the invention of avant-garde jurisprudents. This
is wrong since the origin of natural justice dates back to time immemorial when God
commanded Adam, but gave him a fair hearing before taking punitive action on him. The
soul of natural justice is fair play in action. To avoid the travesty of injustice, natural justice
has occupied the field effectively after Ridge v. Baldwin in Britain and through a series of
progressive rulings; India has acclimatized natural justice as a pervasive principle beyond
defiance by the executive or other State edicts.